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Thread: Please tell me if I have a case - Poor work performance CCMA

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    Question Please tell me if I have a case - Poor work performance CCMA

    PLEASE HELP

    I have been working as a sales representative for a manufacturing company from June 2015 and have hit a big speed bump. I have been working hard trying to make sales but unfortunately due to my head office taking their sweet time getting manufacturing quotes to me I have missed a lot of deadlines and the clients have not returned to me, making my job extremely difficult to do.

    I have been placed on a poor work performance evaluation (I have not received target once this year of working for this company and no warnings or verbal warnings given before evaluation) after which the chairman decided that training would be the best way forward. The training was supposed to be done by 31 July 2016 and my first evaluation was supposed to be done 30 August. Due to this not being done they extended their training dates to 30 August and first evaluation to 30 September of which I need to reach at least 50% of my monthly target.

    Currently I am on 42.1% of the sales for the month of September.

    The timeline of the occurrence.

    06 July 2016 – Poor Work Performance Evaluation conducted
    11 July 2016 – Evaluation feedback received from Chairman – 1 week training needs to be provided by 31 July 2016 and evaluation as follows Aug – 50%, Sept – 70%, Oct – 90% of monthly sales target will need to be met.
    15 July 2016 – I asked what the training procedure will be and I was told he is not sure we will have to wait for GM to come through to Cape Town next week. . My manager said due to him doing things completely different from other sales persons, regarding the sales training he can read up on the internet on different techniques and procedures and pass the information on.
    18 July 2016 – I followed up with HR and asking what procedure is for training
    18 July 2016 – I sent through technical training suggestions which I think might help to my direct manager and HR
    27 July 2016 – I was ambushed in meeting 7:45am when arriving for work. Was told by the GM that I was told to be in the meeting. My manager said he told me. I explained that I was not told about the meeting, just that my manager was referring to him having a meeting with Head office in the morning at 7am. My manager says he apologised to the GM after meeting and said that he might have explained it wrong about the meeting and whom was supposed to attend.
    The GM went through figures and looked at the training notes I sent (15 July 2016) and I was told by my GM and the Director that this is all an excuse and they can tell me now the outcome was does not look good and that they have to leave for a meeting and I must use this time to think of what their outcome is.
    Lunch break –
    After lunch I was called into the boardroom and explained that they have spoken about the issue and feel a voluntary termination of contract will be the best option. They will offer me one month payment and we call it quits from all sides. I said that I will need to refer this to my legal advisers.
    27 July 2016 – 5:02pm - the Voluntary termination agreement was emailed to me.
    (GM asked administration lady to keep petrol card from me until further notice, this was a new card being issued for fuel usage as of 1 August 2016)
    28 July 2016 – I sent an email asking to give them feedback by Monday 1 August as my legal team will need to respond to this.
    28 July 2016 – My manager explained in an email to me that the company will only be able to give me till COB 29/07/2016 to sign the document otherwise the evaluation will have to continue.
    01 Aug 2016 - Emailed letter saying that I will not be accepting the voluntary termination of contract as this was seen as a direct way to dismiss me and ignore the findings of the evaluation and requested that they supply me with training.
    04 Aug 2016 – Petrol card still not received, I emailed to ask when I will be receiving my renewal of the petrol card, the admin lady handed it to me after the email and asked me to sign for receiving.
    04 Aug 2016 – My manager emailed and asked for calendar to be shared with him
    05 Aug 2016 – I Shared calendar and asked if my manager will use this to schedule my training – No response further from my manager
    12 Aug 2016 – My manager emailed and asked if I can schedule meetings for next week to use as training as he would shadow me and give me feedback after meetings. (I was in Stellenbosch at this time with a high end client). Arranged meetings as soon as I got back to Cape Town +- 3pm.
    16 Aug 2016 – Emailed my manager and asked if I can possibly shadow him when he goes to meetings to see what his sales strategies are – No response from him regarding this
    17 – 19 Aug was used as training with clients
    1. 1st client – Manager was not present
    2. 2nd Client – Manager was not present – He went to meeting with one of his clients – I was informed about this meeting a few days prior.
    3. 3rd Client – Manager was present – Was told that all information given was correct and the only thing he can see wrong was that I was not focusing on special manufacturing enough
    4. 4th Client – Client postponed meeting
    5. 5th Client – Manager was present – Feedback was that I need to be a bit more confident when talking to clients. He feels like I confuse myself although I have all the information
    25 Aug 2016 – Training was given to me by Manager. Answered the questions from my technical training document as requested. Was referred to ISO document a lot and was handed to me after training to remember what I signed for. The ISO documents have only been given to us once and then put into the admin lady office. I requested digital files as reference and was told that there is not real structure in the documents sent and they had to sort through them for days. Unfortunately they cannot send them to me.
    25 Aug 2016 – Manager asked SHEQ rep to validate the periods of Guarantee and Warranty as he was not sure
    25 Aug 2016 – Manager confirmed sheet sizes for machines from head of departments. No other specs given on machinery.
    31 Aug 2016 – Manager said he has not gotten to the documents for the ISO training as of yet and will give it to me 1 September to sign for completion of training
    1 Sept 2016 – Manager asked me to sign documents as they are done with the training as per ISO. Manager emailed copies to me.

    I am afraid that I might end a few percentage short of my 50% target but I might still make it. If the company does decide to let me go due to me not reaching 50% of my monthly target will I have a case against them for unfair dismissal due at the CCMA?

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Deviiance View Post
    I have been working as a sales representative for a manufacturing company from June 2015 and have hit a big speed bump. I have been working hard trying to make sales but unfortunately due to my head office taking their sweet time getting manufacturing quotes to me I have missed a lot of deadlines and the clients have not returned to me, making my job extremely difficult to do.
    Have you raised this with management and did you raise it in the work performance evaluation?
    The trouble with opportunity is it normally comes dressed up as work.

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    Quote Originally Posted by Dave A View Post
    Have you raised this with management and did you raise it in the work performance evaluation?
    Hi Dave

    I have previously sent an email to the director explaining that I am struggling and that I was not sure why my sales are not coming through. They responded telephonically saying that I am on the right route and that sales in our industry takes time. No further effort was spent on me from there. I received brief training in the beginning of my employment and no further training was given after that until now with the evaluation.

    As I said before the evaluation was the first interaction I have had regarding my sales being below performance level.

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    Sorry Dave, yes I did mention that my poor work performance is due to my head office not giving me the support needed in time to meet clients deadlines.

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    Can someone please assist me with this as it is almost my evaluation date.

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    Diamond Member Vanash Naick's Avatar
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    Hi Deviiance


    Case Law to help you

    1. In Pernod Ricard SA (Pty) Ltd v CCMA (2011) 32 ILJ 1199 (LC) para 16 it was provided that not meeting performance targets was not sufficient to prove a case of poor work performance and that the employer should also take into consideration the underlying circumstances which will include the economic climate, the characteristics of the market area, whether there are proper support structures for you to meet targets as well as the business cycle.

    2. In White vs Medpro Pharmaceuticals (Pty) Ltd (2000, 10 BALR 1182): the employee by the name of White was dismissed for not meeting the required sales targets. The employer was adamant that reaching these sales targets was basically the employee’s main job. The arbitrator held that it was the employer’s task to prove that the performance targets that they set were consistently and fairly applied. The employer was unable to prove this, as a result the dismissal was found to be both procedurally and substantively unfair.

    3. In Robinson vs Sun Couriers (2003, 1 BALR 97) The commissioner actually blamed the respondent for the employee’s failure to meet performance targets. It was stated that even if performance targets are reasonable, the employer actually has a responsibility to help the employee reach these targets.

    4. In Duff vs McGregor (Pty) Ltd (2004, 1 BALR 21)This was a matter of whether sales targets set were attainable and the arbitrator blamed the respondent for the applicant’s inability to reach targets. The arbitrator wanted the employer to prove that the sales targets were attainable. The employer was unable to prove this. The dismissal was found to be both substantively and procedurally unfair

    5. In Palace Engineering (PTY) LTD and Thulani Ngcobo, Commissioner Shaam Govender N.O. and Commissioner for Conciliation and Mediationi Case no: JA20/2012, the LAC looked at poor work performance and sales targets. The employee’s sales target was R100 million per annum. The court found that the employee was unable to meet this target because he didn’t have sufficient infrastructure and resources such as staff and also because the company itself failed to generate contracts, which the employee had no control over.
    Have a look at this particular case here


    Legislation

    1. Item 8(2)(a) of the Labour Relations Act 66 of 1995 says:

    “8(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -

    (a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and

    (b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

    (3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

    (4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.

    2. Item 9(LRA) entitled “Guidelines in cases of dismissal for poor work performance,” states

    Any person determining whether a dismissal for poor work performance is unfair should consider -

    (a) whether or not the employee failed to meet a performance standard; and

    (b) if the employee did not meet a required performance standard whether or not -

    (i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

    (ii) the employee was given a fair opportunity to meet the required performance standard; and

    (iii) dismissal was an appropriate sanction for not meeting the required performance standard
    Last edited by Vanash Naick; 23-Sep-16 at 01:23 PM. Reason: typo
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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  7. Thank given for this post:

    adrianh (23-Sep-16), Greig Whitton (23-Sep-16)

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    Thank you very much Vanash you are a great help.

    Does this mean that I stand a chance at least and it is not a lost cause?

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Deviiance View Post
    Does this mean that I stand a chance at least and it is not a lost cause?
    As you might gather from the cases Vanash has reported, it's all in the details and not a simple issue to decide.

    Frankly, it seems your employer may be aware of these intricacies...

    If I were you, I'd focus on doing my best to produce the results wanted, and make sure your activity is transparent. If they do dismiss you at some point, worry about whether you may have a case then.

    (Because right now you're wasting energy that could be directed at producing sales results).
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member Vanash Naick's Avatar
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    Quote Originally Posted by Deviiance View Post
    Thank you very much Vanash you are a great help.

    Does this mean that I stand a chance at least and it is not a lost cause?
    Based on the given scenario, in my opinion, you stand a chance. Procedurally it seems that the employer is already in default. Once performance evaluation for poor work performance begins, in terms of the law this is a 'process.' There is a reason why I highlighted the word process! Item 8(4) of the LRA states as follows:

    In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee. Whilst, you do state when they tried to get you to sign the ‘voluntary termination,’ you replied by stating that you will consult with your legal team first, you had the right to assistance by a trade union official or fellow employee from the outset.
    All the case law will assist you.
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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  11. #10
    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Vanash Naick View Post
    Whilst, you do state when they tried to get you to sign the ‘voluntary termination,’
    Eish! I'd forgotten about that. That would have been a slam dunk constructive dismissal finding at the CCMA, surely
    Maybe the employer is not so up to speed after all.
    The trouble with opportunity is it normally comes dressed up as work.

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